This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Sunday, September 30, 2007

The American Constitution Society has a new project that will serve both the public interest community and law students. Public interest groups can post topics they'd liked to have researched and get students to work on them. Students casting about for paper topics can find something interesting that might actually make a difference. Talk about win-win!

ACS ResearchLink collects legal research topics submitted by practitioners for law students to explore in faculty-supervised writing projects for academic credit. Topic authors will receive a copy of the resulting student papers, which ACS will also post in a searchable online library. By connecting law students and faculty with the research needs of public interest organizations and advocates, ACS ResearchLink will become an increasingly comprehensive and powerful engine for change, while also enhancing the relevance and influence of student academic scholarship.

Saturday, September 29, 2007

Law Librarians of Puget Sound has a community outreach program, offering a grant of up to $500 for a project to create, expand, or update legal resource collections or facilitate access to legal resources for Puget Sound residents.

"Funds may be spent on print or online resources, computer software or hardware or professional services, such as translation of legal materials."

Priority is given to projects serving low-income clients, but there is no income restriction.

Last year, the first grant went to DAWN (Domestic Abuse Women’s Network) for its new DAWN Legal Resource Center – a room at DAWN’s confidential location for their clients to safely access a computer, phone, fax, copier and other resources. The grant enabled DAWN to buy WSBA's three-volume Family Law Deskbook and other materials.

Could your organization use a grant like this?

Read more and download the application here. The application deadline is October 31.

This summer the Washington State Attorney General's Office started All Consuming, a blog about consumer law for consumers.http://www.blogger.com/img/gl.link.gif. Seems to be a great means of public education.

While at the site, I learned that Northwest Justice Project is opening three new offices in Washington, in Aberdeen, Port Angeles, and Longview. There was a celebration and an open house at the Port Angeles office yesterday. More legal help for low-income folks, Sept. 26, 2007.

Almost one year after Michael "Mikey" Miller was accidentally shot and killed in their Burien home, the couple went before a King County judge Friday to plead for leniency for the teen who pulled the trigger: their other son, Jordan Jantoc.

* * *

"I think this is a case where justice needs to be tempered with mercy," [Superior Court Judge Harry] McCarthy said before he sentenced Jordan to 24 months of home detention, followed by probation when he will be required to give speeches on gun control.

Now the Department of Corrections says it cannot legally comply with the sentence:

[A]ccording to the prosecutor's office, the state prison system said it could not enforce Jantoc's sentence because home detention is not available to those convicted of certain violent crimes nor is it typically used for sentences of more than one year.

* * * King County Deputy Prosecutor Don Raz said he does not expect DOC's notice to significantly alter Jantoc's existing sentence.

Friday, September 28, 2007

Russell trial moving to Kelso, Spokesman Review, Sept. 26, 2007. Originally prosecutors opposed the defense motion to move the trial of Fred Russell, accused of vehicular homicide, because of local publicity and prejudice, but then they agreed. Judge David Frazier (Whitman County Superior Court) ruled Tuesday that the trial should move to Kelso.

Frazier granted a one-week delay to allow prosecutors to prepare more than 60 witnesses to appear at the courthouse in Kelso. Cowlitz County is in southwestern Washington, north of Clark County. Frazier said in a hearing Monday that he liked the county because it was near a major metropolitan area with an airport but outside the major media markets in Washington.

Judge Frazier still has not ruled on the defense motion to exclude blood alcohol evidence.

Thursday, September 27, 2007

It is, of course, about cases being vacated, not about the pleasures of being on vacation.

Because I am, admittedly, pretty lazy, I have always given short shrift to vacated opinions. They have, after all, been “vacated,” which the Oxford English Dictionary reports means “[a]nnulled, made legally void.” Recently, however, I realized that vacated opinions have begun to play an increasingly significant role in the development of the law, a role that remains largely unappreciated and completely unexamined. Contrary to Gertrude Stein, there may be a there there after all.

The Columbia Law Review devoted an issue (vol. 106 no. 7, pp. 1479-1954, Nov. 2006) to Litigation Reform Since the Private Securities Litigation Reform Act 10 years ago. It includes a section on the Class Action Fairness Act. You can read the articles here.

* * * Poor and low-wage workers and their families in the aggressively globalized U.S. economy increasingly are Limited English Proficient * * *. And yet, despite a growing awareness of the challenges posed by limited English proficiency to the social, economic, political, and cultural well-being of poor immigrants today, relatively little attention has been paid to the role of language difference in poverty lawyering.

This Article confronts the complexities of lawyering across language difference. Starting with the principal model for poverty lawyering—client-centeredness—it suggests the inadequacy of the model for meeting the challenges of language difference, particularly when an interpreter is interposed in the paradigmatic lawyer-client dyad. After exploring the nature of interpretation and the role of interpreters, the Article argues in favor of a more collaborative relationship among lawyers, clients, and interpreters than is often seen in poverty law practice. Specifically, it suggests that the disruption effected by the introduction of an interpreter may be more productive than is typically realized, and invites a normative reconceptualiztion of the traditional lawyer-client relationship.

Ultimately, the Article urges the embrace of an emerging set of practices known as community interpreting, and argues that its increased attention to cultural context, third-party relationships, and community involvement is consistent with the methods and goals of community lawyering.

Greg May, presiding blogger of the California Blog of Appeal, summarizes The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions, 28 Whittier L.Rev. 1087 (2007).Study of Sanctions in Appellate Proceedings, Aug. 22, 2007. (You might have to scroll down a lot to get to the post.)

The King County Bar Association, the League of Women Voters of Seattle, and the Municipal League Foundation are hosting two brown-bag candidate debates with the candidates for King County Prosecutor, Dan Satterberg (currently the interim prosecutor) and Bill Sherman (an attorney in the prosecutor's office). A copy of the flyer is here.

This study explores the continued process of displacement of African Americans from a Seattle community in which they were once captive to their dispersal throughout the southeast sections of the city, the so-called Rainier Valley, and to the inner suburbs of Renton and Kent, once working and middle class white communities in which African Americans could not safely walk after dark. The study commenced on the assumption that the disappearance of African Americans from Seattle’s core, just a mile or so from downtown Seattle, was a net loss in the zero-sum game that might describe American racial dynamics in which blacks usually lose when they have something Euro Americans want. What then follows is anecdotal information that surveys African American attitudes toward the gentrification and the gain and loss presented by Euro American demand for housing in their once vibrant community. The study concludes in equipoise on the outcome of the gentrification. Rather than determining whether the displacement is “good” or “bad,” the ultimate question is whether Seattle will see a stable and successful inter-racial area emerge at the expense of black political power in Seattle.

Tuesday, September 25, 2007

The City of Seattle has filed suit against the Seattle Supersonics' and Storm's owners to try to keep the teams in Seattle through the end of their lease of the KeyArena. Blame flies as city sues Sonics, Seattle Times, Sept. 25, 2007.

The Seattle Times has posted a pdf of the complaint (11 pages, with 75 pages of exhibits).

In addition to City Attorney Tom Carr, the city is represented by a team from K&L Gates.

I'm reminded of the first-year Contracts case where a concert hall owner tried to force an opera singer to sing. It doesn't always work so well.

To those who enjoy good, hard-fought athletic contests, I recommend finding youth leagues and school teams and following them. They're likely to stay in town, the athletes try their best and truly care about the outcomes of their games, and the seats are a lot more affordable than anything in the NBA.

Photo: Coach Bill Resler with his Roosevelt High School team, from "The Heart of the Game" (Miramax Pictures) via University Week.

You've heard of poetry in motion? Here's poetry in response to a motion.

A pro se prisoner filed a hard-boiled egg with his case, and the magistrate judge responded with an order in the cadence of Green Eggs and Ham. It's been picked up by the Associated Press and a bunch of bloggers. Here's a link to Abovethelaw: A Legal Tabloid, which has a pdf of the order.

A couple of commenters decry judges using humor to belittle litigants.

For more opinions in verse and also law review articles critiquing judicial humor, see our guide, Judicial Humor.

The prisoner says that he is an Orthodox Jew and complains that the prison refuses to serve him a kosher diet. For a little more on issues relating to religion in prisons (including Gentile prisoners who say they're Jewish largely to get a more palatable diet), see this earlier post linking to a Seattle Weekly article.

If you would have gone with "I am the eggman" rather than "I do not like green eggs and ham," then see this post about rock lyrics in legal opinions.

Since 1996 IFAP's law students teamed with pro bono attorneys have been helping immigrant women and children who are the victims of domestic violence. Each year, about 50 law students (many of them 1Ls) volunteer to help the women navigate the immigration system and take advantage of the laws that permit them to retain their immigration status even if they leave the abusive partners who may have enabled them to immigrate in the first place.

Attorneys who will commit to taking one case during the year can take the upcoming IFAP CLE (Oct. 26) for the cost of materials ($25).

The NWIRP dinner is always inspirational. One speaker was a client who told his story of coming to the U.S. from Congo and seeking asylum. Immigration officials handcuffed him and put him in detention. He remarked wryly that he wanted protection and they gave him "maximum protection." He was denied asylum and lost hope. But a NWIRP volunteer attorney from K&L Gates told him he could appeal and took the case. He lost the appeal. He lost another appeal. But NWIRP posted a bond for him so he could be released from the detention center and, eventually, he was granted residency.

The violation of immigration laws is considered civil rather than criminal, so the people facing deportation don't have a right to counsel. There are no public defenders for immigration cases. So most of the thousands of people who face proceedings in our state each year do so alone. NWIRP's staff and volunteers do incredibly valuable work, representing immigrants and providing legal orientation sessions to those detained at the Northwest Detention Center. (This year, the detention center's capacity went up to 1000 beds. It is at capacity.)

In four decades spanning student revolution and the information revolution, Mr. Crowley went from campus radical to the city's most prominent citizen historian, co-founding and running HistoryLink.org, an online encyclopedia of Washington state history.

If you're curious about the backstory in a case or issue or you'd like a quick biography of a judge or other prominent figure, give HistoryLink a try.

(I didn't set out to find only articles by David Wilma, but these all happen to be. He was the Deputy Director of HistoryLink -- which has a large roster of board members, volunteers, and staff -- from 2003 to 2007.)

[Jeffrey] Sullivan was named acting U.S. attorney shortly after the Justice Department's controversial firing of John McKay in December. His appointment will end Oct. 12, along with those of 11 other interim U.S. attorneys, because of legislation passed this spring, according to the Justice Department. If the White House does not nominate a permanent replacement for McKay, the U.S. District Court in Seattle can name a new interim federal prosecutor. The decision would fall to the court's senior judge, Robert Lasnik, a Clinton appointee who has been preparing to fill the vacancy.

Saturday, September 22, 2007

Today's Weekend America had a story about the program sponsored by the Justice Department that gives people with outstanding warrants an opportunity to surrender, generally at churches. A Fugitive Safe Haven, Sept. 22, 2007. I posted a link to a New York Times article on the same program this summer (earlier post). The radio program adds the personal touch of an interview with two people who turned themselves in.

I was also interested in the radio interview with Prof. June Price Tangney, a clinical psychologist at George Mason University who has studied "moral emotions" -- principally shame and guilt -- including in the context of the justice system. I looked up her publications, and found this one that might interest Trial Ad Note readers:

Working at the Social-Clinical-Community-Criminology Interface: The George Mason University inmate study. [References].2007Tangney, June Price; Mashek, Debra; Stuewig, Jeffrey.E-Mail Address Tangney, June Price: jtangney@gmu.eduJournal of Social & Clinical Psychology. Vol 26(1) Jan 2007, 1-21.

This article describes our attempt to import social-personality theory and research on moral emotions and moral cognitions to applied problems of crime, substance abuse, and HIV risk behavior. Thus far, in an inmate sample, we have evidence that criminogenic beliefs and proneness to guilt are each predictive of re-offense after release from jail. In addition, we have evidence that jail programs and services may reduce criminogenic beliefs and enhance adaptive feelings of guilt. As our sample size increases, our next step is to test the full mediational model, examining the degree to which programs and services impact post-release desistance via their effect on moral emotions and cognitions. In addition to highlighting some of the key findings from our longitudinal study of jail inmates over the period of incarceration and post-release, we describe the origins and development of this interdisciplinary project, highlighting the challenges and rewards of such endeavors.

Fred Russell's defense is using a 2004 audit of the Washington State Patrol crime lab to support its motion to suppress evidence of his blood alcohol level, becausee the lab lost the vials with the blood samples. Audit: WSP lab 'severely deficient', Spokesman Review, Sept. 20, 2007. Russell's attorney is UW Trial Ad Instructor Francisco Duarte.

A Tacoma man who falsely claimed he was a decorated war hero and even appeared in a video that protested the U.S. role in Iraq was sentenced Friday to five months in a federal prison for making false statements to the Department of Veterans Affairs.

The case was in the Western District of Washington, Judge Lasnik.

I was curious about the statute making it a crime to like to the VA. See 18 USC § 289:

Sec. 289. False claims for pensions

Whoever knowingly and willfully makes, or presents any false, fictitious or fraudulent affidavit, declaration, certificate, voucher, endorsement, or paper or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Secretary of Veterans Affairs, * * * Shall be fined under this title or imprisoned not more than five years, or both.

Back in my TV-besotted youth, there was a margarine commercial with the tagline "It's not nice to fool Mother Nature." There are likewise penalties for fooling Uncle Sam.

Melvyn Weiss, cofounder of Milberg Weiss Bershad & Schulman, was indicted by federal prosetors in L.A., who charged that he conspired to pay kickbacks to people who agreed to be plaintiffs in class-action cases. N.Y. lawyer indicted in kickbacks investigation, Seattle Times, Sept. 21, 2007.

This morning's Seattle Times has a front-page story about a rally protesting the treatment of six African American teens charged with attempted murder in the beating of a white teen in Jena, LA. "Jena Six" rally puts justice system on trial, Seattle Times, Sept. 21, 2007.

Thursday, September 20, 2007

A lawsuit in DC got a lot of attention -- an administrative law judge sued a dry cleaner for millions of dollars over a problem with a pair of pants. He lost. The Korean couple that owned the dry cleaning business got a lot of support, including fundraisers that covered their attorney's fees. But they have still suffered losses -- they lost a lot of business and suffered a lot of stress. And now they have closed the shop (they still have one other shop). Even litigation that you win can have a high cost. Marc Fisher, Dry Cleaners' Victory in Pants Lawsuit Still Comes With a Loss.

Wednesday, September 19, 2007

Almost one year after Michael "Mikey" Miller was accidentally shot and killed in their Burien home, the couple went before a King County judge Friday to plead for leniency for the teen who pulled the trigger: their other son, Jordan Jantoc.

* * *

"I think this is a case where justice needs to be tempered with mercy," [Superior Court Judge Harry] McCarthy said before he sentenced Jordan to 24 months of home detention, followed by probation when he will be required to give speeches on gun control.

Columnist Danny Westneat, "pawing through the firm's expense sheets," discovered that Davis Wright Tremaine has included in his fee request "287 hours of work related to its own billing. This includes researching how to collect the fees. Tabulating the hours everyone worked and expenses they incurred. Writing up memos defending their bills as reasonable." The bill just keeps going up, Seattle Times, Sept. 19, 2007.

Westneat says this is nuts. He doesn't buy DWT's argument that charging the school district big fees is a way to prevent further violations of civil rights. He doesn't buy DWT's analogy of this case to one where prison guards beat up a prisoner.

Update (Sept. 23): A reader, Scott St. Clair, wrote to Westneat about his column:

"It's curious that Westneat, given his personal history of being on the receiving end of similarly motivated School District abuse, isn't more sympathetic to the law firm," he wrote. "And less sympathetic to the villains of the piece, the politically motivated, educationally oblivious school board... ."

He's talking about the mess I was embroiled in last year, when, after years involved in our local school, we left due in part to an administration we felt was resistant to whites integrating a black school.

St. Clair's point: Seattle schools are so fixated on race that even the nation's highest court isn't enough to check it. The mule won't notice without "a board upside the head."

He might be right. I still think fining the schools is overkill. But I love it when a reader makes me doubt.

OMAHA, Neb -- State Sen. Ernie Chambers is suing God. He said on Monday that it is to prove a point about frivolous lawsuits.

Chambers said senators periodically have offered bills prohibiting the filing of certain types of suits. He said his main objection is that the constitution requires that the doors to the courthouse be open to all.

"Thus anybody can file a lawsuit against anybody -- even God," Chambers said."

On page B1, the story is about the Mormon church being held liable for a man's sexual abuse of his step-daughters. After years of abuse, the older girl talked to the family's bishop, who persuaded her not to report the abuse and instead to pray for her family. The court upheld an award against the church based on the bishop's role, but not the portion of the award attributable to the man.

Tuesday, September 18, 2007

Four years ago a peace activist from Olympia was killed by an Israeli bulldozer that was razing a Palestinian home. Her family -- and the families of 16 Palestinians who were killed or injured -- sued Caterpillar, the manufacturer of the bulldozer, for abetting human rights violations. Corrie family suit blocked by judges, Seattle Times, Sept. 18, 2007.

Civil procedure geeks (and I mean that in a good way) might be interested in the way the case was dismissed: defendants moved for dismissal under Fed. R. Civ. P. 12(b)(6), but the court took it as going to the heart of jurisdiction -- i.e., Fed. R. Civ. P. 12(b)(1) -- and thus considered facts not in the complaint.

In concluding that jurisdiction is precluded by the political question doctrine, the court noted:

The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States. Though mindful that we must analyze each of the plaintiffs’ “individual claims,” id. at 547, each claim unavoidably rests on the singular premise that Caterpillar should not have sold its bulldozers to the IDF. Yet these sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States.

The plaintiffs were represented by Gwynne Skinner and Ronald C. Slye from Seattle University's Ronald A. Peterson Law Clinic, as well as by attorneys from the Center for Constitutional Rights (New York). Erwin Chemerinsky (Duke University) argued for the plaintiffs-appellants. There were also a number of amici, including the United States, the National Chamber Litigation Center, and groups of law professors.

(Side note: Prof. Chemerinsky will be the dean of the new law school at University of California - Irvine. UCI, Chemerinsky putting on a happy face, L.A. Times, Sept. 18, 2007. What made this newsworthy is that UC-Irvine announced it, then withdrew its offer. After much criticism for the withdrawal, the university rehired him.)

Monday, September 17, 2007

The trial attorneys funding their Referendum 67 campaign say the insurance industry's ads making fun of lawyers are "slanderous, uncivil and reckless."

Karen Koehler, president of the Washington State Trial Lawyers Association, wrote a letter last week to the Washington State Bar Association (WSBA), with copies sent to members of the state Supreme Court, complaining about TV spots featuring the fictional law firm of Sooem Settle & Kashin.

Is it cricket for a firm to say it's taking a case pro bono and then seek fees from the defendant? DWT says yes: "pro bono" means that the clients didn't have to pay. Making a government pay fees creates a disincentive for governments to deprive people of their civil rights.

Some say it's OK to get the fees as long as they're turned over to charity.

Some say that it would be too bad to take money away from the school district's educational mission. But isn't that always the case with civil rights cases and fees? When a government has to pay attorney's fees to the successful plaintiffs, then that money isn't available for government services. When civil rights plaintiffs get attorney's fees from a police department or prison or DSHS, then the money can't be used for better policing, better conditions for prisoners, or better health care and social services.

Seattle police may turn to private security cameras around the downtown business core to help watch for assaults, drug deals and other crimes.

Following the lead of many other U.S. cities, police and the Downtown Seattle Association are examining the creation of a surveillance system that would allow officers to track live video footage from security cameras on and around downtown buildings.

Prosecutors say that this use of peer-to-peer filing sharing is becoming common. They even had a security consultant at their news conference show how a stream of P2P searches includes requests for terms like "medical billing" and "password" as well as for pornography and music.

Thursday, September 6, 2007

Every year there are hundreds of law-related conferences, on topics as diverse as law and psychology and law and Catholic social theory. Now there's a way to find out about upcoming conferences. The new Legal Scholarship Blog posts information about conferences, as well as calls for papers and law faculty colloquia.

Davis Wright Tremaine is asking for court-awarded attorney's fees in the school desegregation case decided by the Supreme Court in June in which DWT represented the parents against the Seattle Public Schools. Law firm wants school district to pay $1.8M, Seattle Times, Sept. 6, 2007.

The school district argues that the parents were not the "prevailing party" within the terms of the attorney's fee statute, since Justice Kennedy's concurrence supported the school district's position in part.

The Ninth Circuit will decide the fee application.

I assume that the attorney's fees statute they're proceeding under is 42 U.S.C. § 1988:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs * * *

The case is Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, slip opinion pdf (June 28, 2007). See post. For more on plurality opinions, see this post.

Tuesday, September 4, 2007

A law professor blogged about his notice for jury duty -- he said he hoped not to have to do it, didn't like litigation and wasn't interested in the experience. Several other professors have commented with their experiences serving on juries. Gordon Smith, "Jury service is an opportunity and an obligation shared by all adult citizens", Conglomerate Blog: Business, Law, Economics & Society, Aug. 30, 2007.

Four days after Mr. Tri Hoang, 30, was sent home from the ER at Swedish Medical Center with acid reflux medicine, he died of an aortic rupture. Now a jury has awarded Hoang's family $5.39 million in its suit against Grace Dy, the ER doctor who misdiagnosed him. It did not find liable his regular doctor at a UW clinic who diagnosed a heart infection two days after the ER visit. $5 million award in negligence case, Seattle P-I, Aug. 30, 2007; Jury awards $5.39 million to family in suit over medical negligence, Seattle Times, Aug. 31, 2007.

After an investigation, the State Board of Health had found that Dr. Dy's actions fell "within the standard of care."

The P-I's "Soundoff" page shows a range of opinion along the lines you might expect -- cases like this are signs of litigiousness or examples of how the tort system protects people. At least one writer questions bringing a case when the State Board of Health had cleared the doctor. I don't know how extensive a Board of Health investigation is, but I note that the trial lasted a month. There was surely a lot more to this than what could be covered in the newspaper stories -- and probably more than what the Board of Health reviewed.

The Hoang family was represented by Felix Gavi Luna and Mike Wampold of Peterson Young Putra. Both are UW Trial Ad instructors (and UW Trial Ad alumni too).